Patterson v. Mills

• Decision Date: 23 November 1897
• Parties: PATTERSON et al. v. MILLS et al.
• Court: North Carolina Supreme Court

28 S.E. 368

121 N.C. 258

PATTERSON et al. v. MILLS et al.

Supreme Court of North Carolina

November 23, 1897

Appeal from superior court, Iredell county; Starbuck, Judge.

Action by T. L. Patterson and others against J. W. Mills and others to foreclose a mortgage. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Where the issue submitted in a proceeding to foreclose a mortgage was the only one raised by the pleadings, and every phase of defendant's contention was presented thereon, error in the form or number of the issues submitted is immaterial.

The note and mortgage were executed by the defendants G. F. and J. W. Mills to T. A. Patterson on the 23d day of January 1884, Said mortgage was recorded in the public registry of Iredell county on the 13th day of March, 1884. T. A Patterson died in the year 1888, and J. M. Patterson, his administrator, assigned said note and mortgage to plaintiff Thomas L. Patterson January 28, 1891. On the trial there was no controversy as to the amount due on said note and mortgage. The defendant Sarah Mills, an unmarried sister of the defendants G. F. and J. W. Mills, the mortgagors, claimed title to the land in controversy to herself and the heirs at law of a deceased sister, under an unregistered deed executed by J. W. and G. F. Mills, her brothers, with whom she and her sister lived. Said deed bore date in the year 1878, and was registered the 1st day of July, 1896, after the commencement of this action; the said Sarah Mills alleging notice on the part of said mortgagee of her said deed, and also alleging possession and occupancy by her and her said sister of said land.

The defendants tendered the following issues: "(1) At the time of execution of alleged mortgage, were Sarah Mills and Mary Mills the owners of the land? (2) At the time of the execution of said mortgage, was defendant Sarah Mills in the actual possession of the land? (3) Did plaintiffs' intestate and plaintiffs have knowledge of defendants' claim at the time of the execution of the mortgage?" The court declined to submit said issues, being of opinion that the matters embraced in them could be presented under the issues submitted. Defendants excepted. The court settled the issues, to which there were no exceptions, as follows "(1) What amount, if any is due on plaintiffs' mortgage? Answer (by consent) $___. (2) Is the unregistered deed set up by Sarah Mills and others void as to the plaintiffs?"

After the conclusion of the testimony, the court stated that he would only submit to the jury the question whether J. M Patterson, the agent of T. A. Patterson, the mortgagee, and T. A. Patterson himself, had notice of the deed from G. F. and J. W. Mills to Sarah and Mary Mills, or their claim of ownership, at or before the execution of the mortgage to T. A. Patterson, in 1884. The defendant Sarah Mills excepted, and requested the following instructions: "(1) That if, at the time the mortgage was executed by G. F. and J. W. Mills to J. M. Patterson, agent of T. A. Patterson, said J. M. Patterson was informed of the rights of Sarah and Mary Mills in the land, and took the mortgage under these circumstances, then the mortgagee took with notice of the claim of Sarah and Mary Mills. (2) That T. L. Patterson, in taking an assignment of the past-due note of his father, took the same subject to the equities of Sarah and Mary Mills as against T. A. Patterson. (3) That if Sarah and Mary Mills had an unregistered deed, made in 1878, from J. W. Mills and G. F. Mills, to the land in dispute, and have remained in possession ever since, this is notice to the plaintiff and those under whom he claims, and their deed must prevail against the plaintiff's mortgage; and the possession of the defendants Sarah and Mary Mills, and their exercising right of ownership over the land, since 1878, renting the same to their brothers, and claiming the same under the unregistered deed, was notice to T. A. Patterson, and also to T. L. Patterson. (4) If the plaintiff had been informed of the claim of Sarah and Mary Mills in the lands by Jim and Geo. Mills at and before he took the assignment of the note and mortgage, then he took over mortgage, with notice, and subject to the unregistered deed." His honor gave the first instruction, and declined to give second, third, and fourth instructions; the court holding that, from all the testimony in the case, the character of the possession of Sarah Mills in connection with her brothers, J. W. and G. F. Mills, was not sufficient evidence to go to the jury upon the question of constructive notice. Defendants excepted to refusal to give said instructions. The court, among other things, charged the jury that under the registration laws the deed to Sarah and Mary Mills was void, as against the mortgage to T. A. Patterson, unless Patterson or his agent, J. M. Patterson, at or before the execution of the mortgage, had knowledge that Sarah and Mary Mills had a deed to, or claimed to own, the land. Further on in the charge the court stated that it made no difference whether Patterson acquired knowledge of Sarah Mills' claim at the time (1886) the indemnity mortgage referred to in evidence was given, for the reason that the mortgage under which plaintiff claimed had already been executed. As to the burden of proof, the court charged that it was upon defendant Sarah Mills to prove by the preponderance of evidence that T. A. Patterson himself, or his agent, J. M. Patterson, had knowledge of her claim of ownership at or before the execution of the mortgage. Only so much of the charge as is pertinent to defendants' exception has been set forth.

Of defendants' exceptions, the following are deemed material: "(2) For that the court failed to instruct the jury that if Sarah and Mary Mills had deed made to them in 1878 for the lands in controversy, and have remained in possession of the lands ever since, exercising rights of ownership over the same, such possession being open and notorious, such possession is notice to the plaintiff and to those under whom he claims, and the deed to said Sarah and Mary Mills, although unregistered, must prevail against the mortgage under which the plaintiff claims, and should find the issue submitted in favor of the defendant." "(4) For that the instructions, as given by his honor and set out in the record, are erroneous for failing to give the instructions as above set forth, and also in this, to wit: (a) It states that the unregistered deed set up by Sarah Mills and Mary C. Graham is void as against the mortgage of the plaintiff."

Long & Long, for appellants.

Armfield & Turner, for appellees.

CLARK J.

This proceeding is to foreclose a mortgage which was executed and recorded in 1884. Sarah Mills is brought in as a defendant because she claims under a deed dated in 1878, but which remained unregistered till July, 1896,--after this action was begun. There is nothing in her exception that one of the heirs at law of her deceased sister, who was named as grantee with her in the unregistered deed, is not made a party. Sarah Mills is not interested in that in any way, as her rights cannot be affected thereby.

Every phase of the defendant's contention could have been, and was, presented on the issue as settled by the court; and when this is so, we will not find error as to the mere form or number of the issues submitted. Rittenhouse v. Railway Co., 120 N.C. 544, 26 S.E. 922; Humphrey v. Board, 109 N.C. 132, 13 S.E. 793; Denmark v. Railroad Co., 107 N.C. 185, 12 S.E. 54. Besides, the issue submitted was the only pertinent one raised by the pleadings. Issues upon mere evidential matters should not be submitted. Grant v. Bell, 87 N.C. 34; Patton v. Railroad...